Excerpt: ...1) the likelihood that the moving party will prevail on the merits at trial, and (2) the interim harm that the moving party is likely to sustain if the injunction were denied as compared to the harm that the opposing party is likely to suffer if the preliminary injunction were issued. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69‐70.) In considering these factors, the court “balances the relative hardships.” (Ibid.) The second fac...

Excerpt: ... Clean Energy (“PACE”) program that allows financing for home improvement projects to be repaid by a special property tax assessment. Plaintiffs filed this action against The Solar Group, Inc. and Ygrene Energy Fund, Inc. seeking declaratory relief regarding the parties' rights and duties for repayment of the solar installation. The complaint also seeks injunctive relief from the demanded excessive assessments against the plaintiffs' property...

Excerpt: ...tends to review the documents responsive to requests 42 to 44 and 46 to 48 in camera to determine whether they are covered by the medical peer review privilege under Evidence Code section 1157. The court will only compel production of non‐privileged documents. Explanation: First, to the extent that defendants have requested that the court take judicial notice of other court actions involving plaintiff, the court intends to deny the request. Whi...

Excerpt: ... to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” (Lab. Code, § 2699, subd. (i)(2).) There are very few cases discussing section 2699, and none discuss the standards under which a court is to assess a settlement. Nor has the legislature provided any structure or standards for making the assessment. Published California case law has not done so either. However, the common p...

Excerpt: ...es from the complaint, as improperly alleged. (Code Civ. Proc. § 436.) To deny leave to amend as to the first, second, and fourth causes of action and the prayer for punitive damages. To grant leave to amend as to the third cause of action. Plaintiff shall file and serve his first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer to First Cause of Action: Plaint...

Excerpt: ... a later date, if plaintiff needs more time. The Case Management Conference scheduled for May 3, 2022 is also continued to June 29, 2022. Explanation: Class Certification With regard to class certification, additional evidence is needed to support a finding that plaintiff possesses claims or defenses typical of the class. The class representative must be able to represent the class adequately. (Caro v. Procter & Gamble (1993) 18 Cal.App.4th 644, ...

Excerpt: ...on: The ultimate burden of persuasion on summary judgment/adjudication rests on the moving party. The initial burden of production is to show, by a preponderance of the evidence, that it is more likely than not that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850.) In determining whether any triable issues of material fact exist, the court must strictly construe the moving papers and liberally...

Excerpt: ...the clerk of the minute order. Explanation: Demurrer to the Seventh Cause of Action—Professional Negligence: The elements of a claim for professional negligence are as follows: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession; (2) a breach of that duty; and (3) a proximate causal connection between the negligent conduct and the resulting injury. (Weimer v. Nationstar Mortgage, LLC (2...

Excerpt: ...the pleadings. (Code Civ. Proc. § 436.) To deny leave to amend at this time. However, plaintiffs may bring a properly noticed motion to amend the complaint to substitute the new defendants in place of fictitious defendants in compliance with Code of Civil Procedure sections 473 and 474. Explanation: When a court sustains a demurrer or grants a motion for judgment on the pleadings with leave to amend, the plaintiff is only permitted to amend the ...

Excerpt: ...party is entitled to judgment as a matter of law. (Code Civ. Proc. §437c(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The issue to be determined by the trial court in consideration of a motion for summary judgment is whether or not any facts have been presented which give rise to a triable issue, and not to pass upon or determine the true facts in the case. (Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 775.) The moving party ...

Excerpt: ...ary adjudication of the second and fifth causes of action, as the motion is moot as to those claims, which have now been dismissed with prejudice. Defendants are ordered to submit a proposed judgment consistent with the language of this order within 10 days of the date of service of this order. Explanation: First, the court intends to deny summary adjudication of the breach of fiduciary duty and negligent misrepresentation claims, as plaintiff ha...

Excerpt: ...if the court concludes the pleading was filed for an improper purpose or was indisputably without merit, either legally or factually.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440, citation omitted; see Musaelian v. Adams (2009) 45 Cal.4th 512, 519 [purpose of §127.8 is to deter filing abuses].) The Legislature included a “safe harbor” provision in section 128.7 to ensure the statute is “remedial, not punitive.” (Peake, supra, 2...

Excerpt: ...aint and dismiss the action. The proposed order has errors, as noted below, so it must be corrected and resubmitted for signature. Defendant shall submit a corrected proposed order consistent with the court's order within 10 days. Explanation: Terminating Sanctions: Code of Civil Procedure section 2023.010, subdivision (g) construes “[d]isobeying a court order to provide discovery” to be a “misuse of the discovery process,” but sanctions ...

Excerpt: ...endant at his residence. The worst and most disruptive of the parties took place during summer 2021, though large and disruptive parties continued through October 2021. The motion for preliminary injunction was filed early December 2021. Since then two more apparently large and disruptive parties have been thrown at defendant's residence – one by defendant's nephew while defendant was out of town, and another just last week in which police were...

Excerpt: ... the exclusive provisions of the Right to Repair Act, Civil Code section 896 et seq. They argue that the Right to Repair Act provides the sole and exclusive remedy for construction defect claims, so any cause of action that alleges construction defects is barred. Here, they point out that the plaintiffs' breach of contract claim simply repackages their construction defect claim as a breach of contract, and thus the second cause of action fails to...

Excerpt: ...d or distributed by defendant FCA US, LLC (“FCA”). As a part of that transaction, plaintiff signed a Retail Installment Sales Contract (“RISC”) which contained an arbitration clause. Problems with the vehicle ensued, and this “lemon law” action was filed on 2/23/21, against both Clovis Chrysler and FCA. The Complaint alleges the following causes of action: (1) Violation of Subdivision (d) of Civil Code section 1793.2; (2) Violation of...

Excerpt: ...is motion. (Code Civ. Proc., § 405.38.) Plaintiffs shall pay this amount to the Donna Standard, Esq. within 30 days from the date of this order. To grant defendants' motion to declare plaintiff, Johnny Gonzales, a vexatious litigant and to order plaintiff Johnny Gonzales to post security of $25,000, within 30 days of the date of service of this order, in order to continue litigating the present action. (Code Civ. Proc., § 391.1.) The 30 ‐ day...

Excerpt: ...cle ensued which form the basis of the instant complaint for damages. Plaintiffs originally brought six causes of action against defendant FCA US LLC (FCAUS), and Clovis Chrysler Dodge Jeep Ram. On February 16, 2022, defendant Clovis Chrysler Dodge Jeep Ram was dismissed, effectively dismissing the fifth cause of action which was brought solely against Clovis Chrysler. The remaining five causes of action comprise alleged breaches of Civil Code se...

Excerpt: ...ts and fees of transferring the action within 30 days after service of notice of the transfer order. Explanation: A change of venue must be based on declarations containing admissible evidence. But the court may also consider facts alleged in a verified complaint to the extent that it is not controverted by affidavits of the moving party. (Mission Imports, Inc. v. Superior Court (1982) 31 Cal.3d 921, 929, fn. 7.) Actions concerning “injuries to...

Excerpt: ...anation: Manzo moves to strike the punitive damages allegations and prayer from Ahmed's First Amended Complaint filed on June 14, 2021. Initially the court notes that counsel did not meet and confer in person or by telephone as explicitly required by Code of Civil Procedure, section 435.5, subdivision (a). An exchange of letters does not comply with this requirement. Counsel do not get to pick and choose which clear statutory requirements they fo...

Excerpt: ...uction “The superior court shall review and approve any settlement of any civil action filed pursuant to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” (Lab. Code, § 2699, subd. (i)(2).) There are very few cases discussing section 2699, and none discuss the standards under which a court is to assess a settlement. Nor has the legislature provided any structure or standards...

Excerpt: ...tain defendant FPI's demurrer to the first, second, and third causes of action for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To deny leave to amend. To grant defendants' motion to strike the prayer for punitive damages from the FAC, without leave to amend. To grant defendant FPI's motion to strike the prayer for attorney's fees against it. To grant leave to amend to clarify that the...

Excerpt: ...representative) an incentive award in the amount of $5,000.00. To order that on or before March 30, 2021, the plaintiff shall lodge a revised “Order Granting Final Approval of Class Settlement” and a revised “Final Judgment,” each corrected as discussed in the explanation below. No amount under this final approval and judgment, including payment of the attorney fees and costs, administrator costs, or the plaintiff's incentive award, may b...

Excerpt: ... shall serve and file their amended complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. Explanation: Plaintiffs bring the instant action against defendant on nine causes of action based on wrongful termination and various Labor Code violations. Defendant demurs on the basis that the complaint fails to allege facts sufficient to state causes of action. Defendant challenges plaintiffs' thir...

Excerpt: ...f's claim to own title to the property could be decided, and she could be ejected from her own property. Given the summary nature of unlawful detainer proceedings, it is a rule of long standing that questions of title cannot be raised and litigated by cross‐complaint or affirmative defense in an unlawful detainer case. (Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159; Martin‐Bragg v. Moore (“Martin‐Bragg”) (2013) 219 Cal.App.4th 367, 385 ...